The phrase ”cause or knowingly permit” is commonly used in UK environmental law. This phrase is subject to many interpretations, which has led to some courts in the case of Mcleod and Buchanan interpreting the phrase as two separate offences. This paper will in brief look at the inconsistency to how the ’cause’ part of the phrase has been used in cases relating to pollution of water and the impacts it has had on the ruling of future cases. The leading case on what the law requires as to ’cause’ water pollution is the House of Lords judgment on Alphacell Ltd V Woodward [1972]. Alphacell Ltd V Woodward [1972] Hughes et al, (2002 (a) ) explains that the appellants were convicted of allowing polluting matter to enter a river (Refer to the appendix for the details of this case).
The appellants appealed against this decision, but the court dismissed their appeal.
They used the criteria set out below to reach a judgment of negligence on the appellant’s behalf. Hughes et al, (2002 (b) ) notes that the criteria used by the court was from the Scottish case of Lockhart V National Coal Board [1981]. 1. Prosecution must prove that the accused carried out some active operation or chain of operations, which caused pollution. 2. Foreseeability are not matters, which require to be proved.
3. Neither negligence nor mens rea need be established. 4. Act of third party or act of God need consideration if evidence requires. The House of Lords held that the drafting implied two distinct heads of liability causing the entry of polluting matter, and knowingly permitting its entry.
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Hughes et al, (2002 (c) ) notes that the Alphacell decision insisted that the notion of causation in the offence must be given a common sense meaning. But since that case there have been a large number of High Court and Appeal Court decisions exploring what is meant by “causing the entry” of polluting matter. Some of these appeared to suggest that there must be a “positive” act on the part of the defendant, and that where the pollution was caused, say, by the failure of control equipment, this could not be an offence under the first branch. Similarly, where the actions of a third party such as a trespasser had caused the direct entry of the polluting matter, the defendant could argue that the chain of causation had been broken.
These decisions now have to be re-evaluated in the light of the House of Lords judgement in the Empress Car case. Empress Car Company (Abertillery) Ltd v National Rivers Authority [1998] The company Empress Car was charged with causing the entry of polluting matter into a river (Refer to the appendix for the details of the case).
Wolf et al, (2002 (a) ) explains that Empress Car was convicted by local magistrates and lost on appeal to the Crown Court. Simply because it had brought the polluting matter onto the site and had failed to take sufficient measures, such as fitting a lock on the tap and ensuring the reliability of the bund. The court decided that the case law was confusing, and certified that there was a point of law of general public importance for the House of Lords to consider. The House of Lords agreed that the first branch of the section 85 offence required there to be some ‘positive’ act on the part of the company but the critical question was what counted as a ‘positive act’ (Hughes et al, 2002 (c) ).
Wychavon District Council v National Rivers Authority [1992] Earlier case law, such as that of the Divisional Court in the 1992 case of Wychavon District Council v National Rivers Authority, held that the failure to maintain a sewerage system which resulted in sewage overflows into a river could not amount to a ‘positive act’ (refer to the appendix for the details of this case).
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Wolf et al, (2002 (b) ) goes on to state that In Lord Hoffman’s opinion, such decisions “take far too restrictive a view of the requirement that the defendant must have done something. They seem to require that his ‘positive act’s could not have been in some sense the immediate cause of the escape. Lord Hoffman commented ”the act contains no such requirement.
It only requires a finding that something which the defendant did caused the pollution” In the case of a prosecution under section 85, it seems to be in the author’s opinion therefore wrong to ask the question “What caused the pollution?” which might supply a number of different answers to that question. Instead, “Did the defendant cause the pollution?” Word Count: When it came to questions of the acts of third parties or the influence of natural forces, there were situations where both as a matter of common sense and the application of legal rules there were duties to take precautions to prevent losses being caused by external events (Bell et al 2002 (a) ).
Bell et al (2002 (b) ) recognizes that, before considering questions of causation, it is necessary first to consider the purpose and scope of the rule in question to determine whether it imposed a duty to require one to guard against the deliberate acts of third parties or the operation of natural forces. It was clear that Parliament had imposed a strict liability for the first branch of the offence “in the interests of protecting controlled waters from pollution.” Lord Hoffman agreed with statements in the Alphacell judgements that not every act of a third party could be said to interrupt the chain of causation, and to the extent that other cases such as Impress (Worcester) v Rees in 1971 suggested that they did they were wrongly decided (Refer to the appendix for details of the case).
Although liability under the first limb of the section 85 offence was strict, “it is not an absolute liability in the sense that all that has to be shown is that the polluting matter escaped from the defendant’s land, irrespective of how this happened.
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It must still be possible to say that the defendant caused the pollution.” In his view, the true common sense distinction was between acts and events, which were generally a normal and familiar fact of life, and those, which were abnormal or extraordinary. Acts and events that were familiar in that sense would often be foreseeable, but foreseeability was not strictly a necessary element. The same distinction could be applied to natural events. In the Alphacell case, falling leaves and vegetation had blocked the defendant’s pumps, causing an overflow, but the House of Lords held that they had still caused the pollution in that there had been no abnormal weather conditions but precisely what one would have expected in the autumn (Refer to the appendix for details of the case).
The situation would have been different if there had been some extraordinary natural event or “Act of God” stated by Bell et al (2002 (c) ).
Word Count: 385 Lord Hoffman ended his judgement for Empress Car Company by summarising the key principles to be applied in the case of a charge under section 85.
These are now likely to be widely used by magistrates and other courts dealing with water pollution offences: 1. The prosecution must be asked to identify what it says the defendant did to cause the pollution. 2. If he cannot be said to have done anything then the prosecution must fail, although the circumstances might still warrant a charge of knowingly permitting the pollution. 3.
prosecution need not prove that what the defendant did was the immediate cause of the pollution – maintaining tanks; lagoons or sewerage systems were all doing something, even if the immediate cause was something else (Bell et al 2002 (d) ).
Courts must then consider whether what the prosecution alleged the defendant did could be said to have caused the pollution, and must not be diverted by questions such as: “What was the cause of the pollution?” or “Did something else cause the pollution?” Where the actual escape was also caused by the act of a third party or a natural event, courts must consider whether this should be regarded as a normal fact of life or something extraordinary. “If it was of ordinary occurrence, it will not negative the causal effect of the defendant’s acts even if it was not foreseeable that it would happen to that particular defendant or take that particular form. It if can be regarded as something extraordinary it will be open to justices to hold that the defendant did not cause the pollution.” Word Count: 268 Conclusion The Empress decision clearly throws light on what has proved a difficult area of law, and imposes greater duties on industries and sewerage undertakers to take appropriate preventative steps to guard against the actions of third parties, equipment failure, or natural events such as storm damage. Lord Hoffman’s analysis of what is implied by causation may be of relevance to other areas of environmental law, but the decision is strictly confined to section 85 water pollution offences. The opportunity was taken in the Environment Act 1995 to introduce greater consistency across the enforcement provisions of the different regimes, but it may be that the time has come for a more detailed analysis of the rationale behind the insubstantial distinctions that still exist.
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The House of Lords have given an important ruling concerning the meaning of the key water pollution offences under the Water Resources Act 1991. The lead judgement of Lord Hoffman in Empress Car Company (Abertillery) Ltd v National Rivers Authority (House of Lords, 5 February 1998) provides a fresh analysis of what is meant by “causing” water pollution, and implies that causation can apply even where the polluter takes no active steps. The decision will require industry and sewerage undertakers to pay extra attention to maintaining pollution control equipment and other preventative measures if they are to avoid criminal prosecution.
